India's human rights obligation – A Case study of discrimination and torture in Indian State of Uttar Pradesh

"Police brutality on me, my father and brother shiver my spine and fear overpowers me. Still I am terrified by the police thinking that as I raise voice against them, then they might implicate me in any false case. Earlier police used to stop me and used to threaten that they would implicate me in false case. The entire incident has pained me and it would be in my mind for years together. Suffering emanating out of police torture can not be compensated". (Voice of voiceless, 2011)

India is indeed "incredible[1]" in a way it treats its vulnerable citizen particularly lower caste and poor people. Discrimination, torture, enforced disappearance, police injustice, impunity cases of arbitrary detention are rampant and enough to substantiate India's failure to its human rights compliances. Signatory of various human right instruments, Indian government failed to protect and fulfill its obligation not only to its citizen but also breached many international human rights law. Against this background, this article will argue that India has failed to keep it human rights obligation, particularly the right to freedom torture and arbitrary arrest. In addition, various case studies have been discussed to support the argument. Article concludes with recommendations.

Background

Systemic discrimination to lower caste and minorities has always been a part of cast structure in prevailing Indian society. Due to discrimination, disadvantaged groups failed to access their basic human rights such as access to education, health services, safe drinking water and housing rights. These situations are further aggravated when the following human rights violations are committed, namely:

Rights against subjection to torture or to cruel, inhuman or degrading treatment;

Right to have effective remedy;

Right against arbitrary arrest, detention or exile;

Right to be presumed innocent until proven guilty

Right to have a fair public hearing in civil or criminal matters

There have been many documented cases of police atrocities and states inability to protect the victims. Rather, noticeable in various cases[2], state machinery have been complicit in alleged violations and have found guilty of adding and abetting the criminals. In this connection, documentation has been conducted by India (Varanasi) based N.G.O., PVCHR[3] (People Vigilance Commission on Human Rights) in collaboration with National Alliance on Testimonial Therapy between 2002 to 2010. For the purpose of the gathering concrete evidence, Testimonial method[4] has been adopted.

Further section provides a brief overview about the international human rights instruments India have signed and rectified.

India human rights obligations

India have either acceded or have rectified the following human rights treaty[5]-

International Covenant on Civil and Political Right

International Covenant on Economic, Social and Cultural Rights

International Convention on the Elimination of All Forms of Racial Discrimination

Convention on the Elimination of All Forms of Discrimination against Women

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (only signatory)

In addition, India is one of the founding signatories of Universal Declaration of Human Rights (1948). Notable is the fact that signatory states (UN conventions) have legal obligations to protect, promote and fulfill concerned human rights treaties[6]. For the purpose of this study, it will be worth while to have brief overview on the concerned rights enshrined in international human rights instruments.

Universal Declaration of Human Rights (1948) in article 5 stress on "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Further this element of rights solidifies in International Covenant on Civil and Political Rights (1976) article.7 which illustrates "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment"'. However, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment clearly elaborates that "Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction (art. 2(1))" Even Convention forbids the practice of torture in every circumstance including emergency (art.2 (2)) and no public authority can justify torture (art. 2(3)[7]. Nonetheless, on discrimination, Universal Declaration of Human Rights (1948) says 'All human beings are born free and equal in dignity and rights…" (art.1). Further, Convention on the Elimination of All Forms of Racial Discrimination in its various articles (art.1 (2), art. 2(1(a). art.4) condemn the practice of discrimination.

However, article 15 of the Indian constitution prohibits discrimination on grounds of religions, race, caste, sex or place of birth. The Indian Constitution outlaws caste based discrimination as well as practice of "untouchability"[8]. In addition, under 'article 21' no one shall be deprived of his life or personal liberty.

In this case, powerful local politician have used political connection through local police in order to settle the personal land dispute. Victim S. (district Chandoli, Utter Pradesh, 2008) have been targeted and tortured by district police. In addition, his elder brother was killed in a fake police encounter; his father was illegally imprisoned and tortured. However, due to poor financial condition victim was unable to access the judicial system which is notoriously slow in delivering the justice. Nonetheless, victim failed to get his grievances redressed by police or concerned authority.

This case represents police-politician nexus in tormenting poor people for their personal gains. Interestingly, local police in addition to dereliction of their duties become a tool of oppression and committed the gross violations of human rights by taking an innocent person life in fake encounter. Along with it, victim due to his inability (financially hindrance, mentally hardship) could not access to the justice system, let alone the fair trail.

This case presents a classic example of police atrocities where Varanasi district police has fabricated a case of burglary against lower caste (Mushahar) man Mr. A, 40. He spent four years behind the bars without ever committing any crime. The victim, belonged to the socially and economically disadvantaged group (Mushahar), was arbitrarily arrested many times. He along with his father and uncles were quite often harassed by local police. Interestingly local police did not follow any due procedure of law while arresting, tormenting and searching victim's home abruptly. This horrible incident left victims family shattered. His health gotten worse and could not get the job due social stigma, let alone his economic hardship. Till date (April 2012), victims failed to get any justice.

However, notable is that fact, Varanasi police arrested the victim on the basis of the social stereotype cast of Mushahar community (Victim's caste) being involved in illegal activities. Therefore this case is also a symbolic representation of deeply entrenched social biases prevailing in Indian society and shows government machinery is not immune to it. Rather at many occasions are responsible for adding and abetting the crime.

Human rights violated in the case-

Rights against subjection torture or to cruel, inhuman or degrading treatment; (I.C.C.P.R. art.7)

Right to have effective remedy; (I.C.C.P.R. art. 2 (3.a)

Right against arbitrary arrest, detention or exile; (I.C.C.P.R. art.9)

Right to be presumed innocent until proved guilty (I.C.C.P.R art. 14.(2)

Right to have a fair public hearing in civil or criminal matters (I.C.C.P.R art. 14,16)

Right to privacy (I.C.C.P.R art 17(1)(2)

Right of person to be treated humanely while in detention (I.C.C.P.R. art. 10(1)

Right to equality and non-discrimination (I.C.C.P.R. art. 2(1), 26)

Along with above mentioned violated rights, United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules)[12], Standard Minimum Rules for the Treatment of Prisoners[13] and United Nations Rules for the Protection of Juveniles Deprived of their Liberty[14] were disregarded by the officials. In addition, Indian government failed to take effective legislative, administrative and judicial steps to prevent act of torture therefore is in breach of its human rights obligations.

Has India failed to keep its human rights obligations?

Right to Life, liberty and security

The growing number of extra judicial killings, rampant discrimination against vulnerable groups including minorities and legal immunity questions whether government has honest intention to fulfill their human rights obligations. Custodial torture, inherent in daily police practice, still remains a serious concern. Police practices include assaults, physical abuses, custodial rape, psychological humiliations, as well as deprivation of food/water/sleep and medical attention. Study shows that every year in India, 1.8 million people are victims of police torture[15]. According to National Human Rights Commission Annual report, from 2001-2010, 14,231 people have died in police custody, as a consequence of torture[16]. As per Universal Periodic Review recommendation by WGHCR, Indian government needs to expedite ratification of the Convention against Torture (CAT) preceded by the enactment of a domestic law[17].

Obstacles to justice

The Police Act, 1861 and the Prison Act, 1894 are two of the oldest statutes in effect. Despite countless recommendations for their repeal and replacement with the laws, in sync with the international human rights standards, they are still operational[18]. Proper implementation of the many progressive laws and regulations have been demanded in order to remove the many structural and functional problems in the justice system. However, rights violations by police continue to rise in 2008-9[19]. Police regularly accused of torturing, beating, abduction, deaths in custody and extra- judicial killings in fake encounters. Police department do not usually register case, conduct arbitrary arrests and disregards the procedural safeguards[20]. Nonetheless, there remains a serious lack of awareness amongst litigants on free legal aid services which often doesn't reach the needy.

India tribal population known as Dailts, have long been discriminated in every aspect of life. The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities Act, 1989 seeks to proved such protection. However, weak implementation and low conviction rates (29.32%) are disturbing as is police often refute to register the case against Dalits[21]. Despite the overarching mandate of equality and non-discrimination contained in the Indian Constitution and regardless of the enactment of women specific laws, discrimination against women is systemic and shapes all structures of the state and society[22]. Cases of domestic and sexual violence, harassment at work place, physical and threat are on rise.

Conclusion and recommendations

The right to equality and freedom from discrimination, torture and cruel degrading treatment and inhumane punishment is protected by various provisions of the various international human rights instruments including International Covenant on Civil and Political Rights. Based on International law, States are accountable on its failure to protect its citizen against human rights violations particularly custodial deaths, torture in custody and discrimination on the basis of one's caste. This clearly manifests the gap between prevailing international human rights law and its implementation at domestic level.Discussed cases established the fact that Indian bureaucracy is not sensitive enough towards human rights issues. In addition, deeply rooted social customs have continually sustained and supported social biases against vulnerable groups including highly compartmentalized and stigmatized lower class.

Though Indian government is the signatory of many International human rights instruments but in practice blatant violation of human rights is apparent. Rotten police system, slow and inaccessible justice system is just a symbolic representation of the current scenario.

In conclusion, police system needs to be revamped. In addition, promotion of human rights education should be a compulsory training for government official regardless of their rank and status. Justice should be speedy and must be accessible to disadvantaged groups. To achieve this goal, a human rights awareness campaign could be launched in rural areas. People can be empowered only if they know their rights. However prevailing situation of persistent human rights violations presents manifold challenges to Indian government to full fill its human rights obligations. Number of progressive legal and policy initiatives has been taken by the government. Nonetheless, the lack of implementation continues to hinder the realization of human rights for India's most vulnerable.

[4] Testimonial includes detailed information about the victim's experience. Such testimonies was the confirmation of torture as actual reality and as lived experiences, to the sufferer and to the public, Eastmond, M. (2007) 'Stories as Lived Experience: Narratives in Forced Migration Research', Journal of Refugee Studies, Vol. 20, No.2, P.258 Oxford University Press.

All India Milli Council (AIMC) organized a national convention at Mavalankar Hall, New Delhi on March 31, 2012. The day-long programme was conducted by AIMC General Secretary Dr Mohammed Manzoor Alam and assisted by Mr Mushtaque Ahmad Advocate, on Record, Supreme Court, And Mirza Zaki Ahmad Beg Member Delhi AIMC. On the occasion, an especially prepared 492-page English book "Scapegoats: Questions Over Anti-Terror Operations in India" and booklets in English, Hindi and Urdu "Doubtful Crimes: Terrorism and Communal Hatred---A Tale Told by Numbers" were also released.

Besides, the eminent participants included Rajya Sabha Member Mohammed Adeeb and Jamiat Ulema Hind secretaries Maulana Niaz Ahmed Faruqui and Maulana Abdul Hameed Nomani. On the occasion, a number of terror suspect victims as well as their relatives narrated their sordid tales.

Representatives and Audience of the Convention of AIMC, Mavalankar Hall,New Delhi

After day-long discussion and due deliberation, the convention adopted the following 11-point resolution:

This national convention condemns systematic campaign aimed at demoralizing Muslim youth and others. This national convention resolves to ensure protection of Muslim youth and those belonging to other minorities and weaker sections as a whole---socially, morally, economically, legally etc as enshrined in the Constitution of India.

All unjust and undemocratic laws impinging upon right to life, liberty, expression and association must be repealed forthwith. Laws on sedition must be repealed immediately.

Unlawful Activities (Prevention) Act, 1967 (UAPA) is a black law. Its presence in the statute book is a blot on the country- bigger than TADA and POTA. Its draconian provisions and their abuse against Muslims, Tribals and other weaker sections of society has attained menacing proportions. UAPA must be repealed immediately. The Convention calls upon the government to withdraw Unlawful Activities (Prevention) Bill, 2011, immediately, as the first step. The Convention emphasizes that all anti-terror and other drastic legislations should only be emergency legislations and should not be put on the statute books permanently. They must be subjected to periodic review.

The continuous ban on the Students Islamic Movement of India (SIMI) since 2001 is unjustified, illegal and unconstitutional. Similarly, the declaration of SIMI as "terrorist organization" is also without basis. The ban on SIMI must be lifted immediately and its name should be removed from the schedule of "terrorist organizations" of the UAPA. SIMI must be allowed to function within the constitutional and democratic framework of the country.

Harassment, illegal detention and torture of innocent Muslim youth and those belonging to other communities in the name of fighting terrorism must be stopped. All police and intelligence officials involved in foisting false cases must be prosecuted and punished expeditiously.

Intelligence agencies must have a statutory act ensuring parliamentary control and accountability including audit control by the Comptroller and Auditor General of India (CAG). Further, no intelligence agency, including proposed National Counter Terrorism Centre (NCTC), should be given powers to arrest.

All pending cases involving alleged terrorist offences must be subjected to a comprehensive review by a sitting judge of the Supreme Court. The commission should also include cases of harassment, illegal detention and false implication.

Prosecution of all cases under now-defunct TADA and POTA must be closed.

All pending cases involving alleged terrorist offences must be expeditiously disposed of by ordering their hearing on day-to-day basis.

Compensation should be awarded mandatorily to all persons acquitted of terrorist offences.

A comprehensive law providing for reparation for victims and punishment for wrongful prosecutions must be enacted.

This convention decided to launch a campaign named "Movement for Justice" for taking forward the above demands and to secure justice, social, political and economic, for all.

Sunday, April 22, 2012

Do not believe in anything simply because you have heard it. Do not believe in anything simply because it is spoken and rumored by many. Do not believe in anything simply because it is found written in your religious books. Do not believe in anything merely on the authority of your teachers and elders. Do not believe in traditions because they have been handed down for many generations. But after observation and analysis, when you find that anything agrees with reason and is conducive to the good and benefit of one and all, then accept it and live up to it.

Brahminism(libertarian value of cheating on
name of egalitarianism) is enemy of development. Shraman culture(dalit
culture) of producers (dalit) is main force of food sovereignty in
India.So if India want development of all ,then India should be adopt
the culture of Shraman(Dalit) which is based on
egalitarianism,justice,fraternity,
rule of law,secularism,human dignity and participatory democracy based
on non-violence.By Mr.Ram Kumar,a born dalit,dalit activist and
ideologue,Founder of DAG at PVCHR office — with Kanishka Singh and 2 others at People's Vigilance Committee on Human Rights (PVCHR).

Mostly people are becoming
religious, but they are trying very hard to grab the power for him/herself or
him/her family in smart way in name of egalitarian value. In insecurity of
future, people become very jealous and doing all tricks to cheat other on name
of goodness. Please close your eyes and thing how you are involve in violating
dignity of individual on name of society and another hand cheating society for
individual selfishness. We are extraordinary libertarian with cheating attitude.

Thursday, April 19, 2012

As ED of PVCHR, I am introducing our senior member of Management at PVCHR:Shirin Shabana Khan.The
gamut of Shabana's activities reflects her personal span and provides
credibility and a sense of completeness to the work she does. Her care
for details, meticulous planning, patience , and sincere advocacy of
the issue of the marginalized is contributing a valuable chapter in
PVCHR.http://www.facebook.com/sshirinkhan

Wednesday, April 18, 2012

Peoples’
Vigilance Committee on Human Rights (PVCHR) and National Alliance on
Testimonial Therapy (NATT) are going to organize National Consultation
for two days i.e. 12th – 13th July, 2012 in New Delhi on “Testimonial
campaign contribute to eliminate impunity for perpetrators
of torture in India”. We are aware that the fear and phobia due to
torture and organized violence (TOV) is imparting culture of silence
and testimonial therapy as a psycho -legal support to the survivor is
breaking silence against impunity (http://www.pvchr.net/2012/03/voice-of-voiceless-torture-testimonies.html ).

First day at Magnolia hall, India Habitat Centre, Lodhi Road,Ne Delhi

Second day at Indian Social Institute, 10, Institutional Area,

Lodi Road,New Delhi

Please confirm your esteem presence to lenin@pvchr.asia no later than third week of May, 2012 for making further arrangement.

For more information please contact to Ms. Shruti Nagvanshi on her
mobile no. +91-9935599330 and Ms. Shirin Shabana Khan on her email:
shabana@pvchr.asia, mobile no: +91-9453155296

Being an Ayurvedic physician by profession, has been working for the rights of child and bonded labors and other marginalized section of people in Uttar Pradesh. In 1996, he and his wife, Shruti Nagvanshi founded PVCHR to break the closed, feudal hierarchies of conservative villages by building up local institutions and supporting them with a strong human rights network.

Purpose of visit to Bangalore?

Testimonial therapy plays crucial role in fight for justice and helps the victims of casteist aggression, police torture, communal violence or any other kind of injustice, to come out of the trauma. After successful results in states like Uttar Pradesh, Uttarakhand and Jharkhand, PVCHR is planning to initiate the 'testimonial therapy' in Karnataka with the help of like-minded organizations.

What is Testimonial Therapy?

In developing countries where torture is perpetrated, there are few resources for the provision of therapeutic assistance to the survivors. The testimonial method represents a brief cross-cultural psychological approach to trauma. The method was first described in Chile in 1983, and has since been used in many variations in different cultural contexts.

The aim of the testimony is to facilitate integration of traumatic experiences and restoration of self-esteem. It is also useful as it channels the victims into socially constructive actions like production of a document that could be used as indictment against the offenders.

We have four step approach, we earnestly listen to the narrations of victim as nobody listens to them emotionally, appropriately or completely. And then we prepare the narration systematically in 'I' form and read it before victim, while victim edits it wherever he feels the need. It helps the victim to present himself/herself in placid way before the concerned people or authorities. We hold testimonial ceremonies where-in testimonials are read out and survivors are facilitated. It boosts up the morale and confidence among them. This creates an atmosphere of understanding among the survivors of different kind of violence and between different communities. Finally, we keep them following up as per UN standards, until everything becomes normal.

You are working for cause of human rights since 1996, what is the status of human rights in India, especially northern part?

Casteism, creed, racial feelings, pre-independence British hegemony, communal forces and vested political interests have infused the practice of rights' violation among the people. Rights' violation has been taking place in new forms and on raise even-after serious guidelines. Sangh Parivar, with a slogan of 'Hindu-Hindi-Hindustani' and with issues like Kashmir and north-east, have been engaged in spreading hatred among the different communities, leading to gross violation of minorities' human rights. Unfortunately, we bound to organize a convention on "Reducing Police Torture against Muslim Minorities" recently. Even after six decades of independence and enactment of constitution, Dalits are still victims of caste violence. Atrocities and extortion on Dalits, fake encounters, refusal to register FIR against the dominant class, arbitrary arrests on false charges, illegal detentions and custodial deaths of Dalits are still common. There is no bigger corruption than 'casteism' in India and it has to be eradicated first. There is a strong relation between caste/class/ community and violation of human rights.

Amidst coarse violation of human rights, there is a need to work for unity against the 'divide and rule' movements.

There are national and international laws, measures, guidelines, campaigns for awareness; still there is increase in rights' violation by individuals and authorities.

In India, there are several laws, guidelines and rules &regulations are formulated to uphold the human rights, these are excellent in its own, but the implementing authorities are ineffectual. Either these institutions that are responsible for implementation itself are pervaded with rights' violation or are under the influence of the violators. There is a need of radical change in psyche & practice of casteism, communalism, impunity among the people in administration, law& order, judiciary and society, in this regard.

What about awareness and education of Human Rights among common people?

It is the responsibility of the government to ensure the protection of rights' of its citizens. It needs conviction, plans, strategies, education and proper implementation. Here, in India, governments are lacking seriousness in this regard. Lack of rights' education among both oppressors and victims has led to gross violation of rights. Government should take an initiative to teach human rights' as a subject in for all students in schools & colleges through a systematic curriculum; especially among minorities of all kinds- religious, caste, linguistic or sexual.

What response you have been receiving to your struggle, by people and authorities?

Initially it was poor, but after our successful endeavors, people from different section of the society started supporting the cause. We have very good communiqué with administration, law & order authorities and state & national human rights' commissions and response too.

How longer one can rely on others to fight for him or his people or his community? One has to fight for the justice for himself, his people and his community. We have succeeded in producing that kind of numerous individuals in this journey of struggle. To be a successful social transformation, there is a need of action from both the ends, i.e. from authorities and the people.

'Silence' is the biggest promoter of impunity. We wanted to break the culture of silence, silence against impunity. Through our struggle people have achieved it to a good extent.

What are the difficulties you face in this struggle?

Difficulties are integral part of this struggle. My family, friends and relatives were apprehensive when I changed my field from medical doctor. Later I faced discouragement from the community. And, followed by many-more kinds of hardships posed from vested interests and political powers, as they always wanted to sabotage the voice of oppressed. Threats have become common these years.

These hardship helped me to expand my cause. It got widespread support from the nook and corner of the state; communities working at International level for the rights too have joined the hands.

What you want to convey to your fellow Rights' defenders?

Pointing out at casteism and injustice, my grand-father, a Gandhian and freedom fighter always used to say "Struggle is still pending after the freedom; it is not against British but against our own people."

I would like advice youths that 'be always connected to society, especially marginalized section of people and rule of law, with the values of justice, secularism, democracy and non violence. Use the all possible means to raise the voice for justice, especially Information Technology has to be utilized to amplify the unheard voice of people.'